Amendment SSA2-SB320

SB320-SSA2,6,24 (3) Enforcement. (a) The department may investigate violations of this section.

SB320-SSA2,7,3 (b) The department shall make available to the public, in an electronic format, information that explains how a person who receives an electronic mail solicitation that violates this section may file a complaint with the department.

SB320-SSA2,7,5 (4) Criminal penalties. (a) Except as provided in pars. (b) to (d), whoever violates this section is guilty of a Class A misdemeanor.

SB320-SSA2,7,7 (b) Whoever violates this section is guilty of a Class I felony if any of the following apply:

SB320-SSA2,7,9 1. The person sends more than 250 electronic mail solicitations in any 24-hour period.

SB320-SSA2,7,10 2. The violation causes a loss of more than $500 in any 12-month period.

SB320-SSA2,7,12 3. The person acts in concert with 3 or more others as a leader or organizer of the conduct that violates this section.

SB320-SSA2,7,15 (c) Whoever violates sub. (2) (a) 3. is guilty of a Class I felony, if the person obtains 20 or more electronic mail accounts or Internet user accounts by misrepresenting the person's identity.

SB320-SSA2,7,16 (cm) Whoever violates sub. (2) (a) 7. is guilty of a class H felony.

SB320-SSA2,7,18 (d) Whoever violates this section is guilty of a Class H felony, if any of the following apply:

SB320-SSA2,7,19 1. The person acted in furtherance of a felony.

SB320-SSA2,7,22 2. The person has previously been convicted of violating any law of this state or another state, or a federal law, that regulates the transmission of electronic mail solicitations.

SB320-SSA2,7,25 (e) In addition to the penalties authorized under this section, a court may order that a person who is guilty of violating this section forfeit to the state any of the following:

SB320-SSA2,8,2 1. Money or other things of value the person obtained as a result of violating this section.

SB320-SSA2,8,5 2. Personal property used in connection with a violation of this section, if the owner of the personal property knew it was used in connection with a violation of this section.

SB320-SSA2,8,8 (5) Civil forfeitures. (a) The department may initiate a civil action against a person who violates this section and recover a civil penalty in the following amounts:

SB320-SSA2,8,10 1. Not more than the greater of $25,000 per day of violation, or $8 per electronic mail solicitation sent in violation of this section.

SB320-SSA2,8,14 2. If the court finds the person sent an electronic mail solicitation in violation of this section to a computer that the person knew or should have known was accessible to a minor, the amount under subd. 1. plus an additional forfeiture not to exceed $10,000 per violation.

SB320-SSA2,8,16 (b) An action under this subsection shall be initiated not later than 2 years after the last violation.

SB320-SSA2,8,23 (5m) Private action. (a) If a person, other than an electronic mail service provider, is injured by an electronic mail solicitation that violates this section, the person may bring an action against the sender of the electronic mail solicitation to recover damages not to exceed $500 or twice the amount of the person's pecuniary loss, whichever is greater, if the electronic mail solicitation is one of 250 or more electronic mail solicitations that violate this section sent by a person in a 24-hour period.

SB320-SSA2,9,2 (b) If a person is injured by an electronic mail solicitation that violates sub. (2) (a) 7., the person may bring an action against the sender of the electronic mail solicitation to recover damages not to exceed $500 or twice the amount of the person's pecuniary loss.

SB320-SSA2,9,8 (c) 1. If an electronic mail service provider is injured by an electronic mail solicitation that violates this section and that is one of 250 or more electronic mail solicitations that violate this section sent by a person in a 24-hour period, the electronic mail service provider may bring an action against the sender of the electronic mail solicitation to recover damages as specified in subd. 2., if all of the following are true:

SB320-SSA2,9,10 a. The electronic mail solicitation violates a policy of the electronic mail service provider.

SB320-SSA2,9,12 b. The sender has knowledge of the policy or the policy is available at the electronic mail service provider's Web site.

SB320-SSA2,9,15 2. An electronic mail service provider that prevails in an action under subd. 1. shall recover damages in one of the following amounts, as selected by the electronic mail service provider:

SB320-SSA2,9,16 a. The amount of the electronic mail service provider's pecuniary loss.

SB320-SSA2,9,18 b. $1 for each electronic mail solicitation sent during the 24-hour period to an Internet user of the electronic mail service provider.

SB320-SSA2,9,20 c. $25,000 for each 24-hour period in which the electronic mail service provider is injured by an electronic mail solicitation as described in subd. 1.

SB320-SSA2,9,23 (d) In an action under this subsection, the court shall award reasonable attorney fees, notwithstanding s. 814.04 (1), to a person who obtains equitable relief, damages, or both.

SB320-SSA2,9,25 (6) Affirmative defense. (a) It is an affirmative defense to the sending of an electronic mail solicitation in violation of this section if the person who sent the electronic mail solicitation demonstrates, by a preponderance of the evidence, that the electronic mail solicitation was sent in error and the person did all of the following:

SB320-SSA2,10,5 1. Provided to recipients of the electronic mail solicitations a reasonable opportunity to request that the person send no further electronic mail solicitations.

SB320-SSA2,10,8 2. Established and implemented, with due care, reasonable practices and procedures effectively to prevent the sending of electronic mail solicitations from that person in violation of this section.

SB320-SSA2,10,10 3. Trained the person's employees, if any, with regard to the requirements of this section.

SB320-SSA2,10,11 4. Maintained records documenting compliance with this section.

SB320-SSA2,10,15 (b) No person may exercise the defense under par. (a) more than once in any 12-month period. A person exercises the defense if the defense is asserted in response to any complaint made to the department about a violation of this section, regardless of whether litigation has been initiated.

SB320-SSA2,10,18 (7) Immunity. An electronic mail service provider is immune from civil liability for any good faith acts or omissions related to the blocking of electronic mail solicitations sent in violation of this section.

SB320-SSA2,10,21 (8) Territorial application. This section applies to any interstate electronic mail solicitation sent or received by a person in this state and any intrastate electronic mail solicitation.

SB320-SSA2, s. 6 Section 6. 165.25 (4) (ar) of the statutes is amended to read:

SB320-SSA2,11,3 165.25 (4) (ar) The department of justice shall furnish all legal services required by the department of agriculture, trade and consumer protection relating to the enforcement of ss. 100.171, 100.173, 100.174, 100.175, 100.177, 100.18, 100.182, 100.20, 100.205, 100.207, 100.209, 100.21, 100.28, 100.37, 100.42, 100.50 and, 100.51, and 100.54 and chs. 126, 136, 344, 704, 707, and 779, together with any other services as are necessarily connected to the legal services.

SB320-SSA2, s. 7 Section 7. 943.201 (2m) of the statutes is created to read:

SB320-SSA2,11,8 943.201 (2m) Notwithstanding the maximum fine specified in s. 939.50 (3) (h), a person who violates sub. (2) may be fined not more than $20,000 if, in committing that violation, the person used identifying information, as defined in s. 100.54 (1) (bg), obtained through a violation of s. 100.54 (2) (a) 7.

SB320-SSA2, s. 8 Section 8. Nonstatutory provisions.

SB320-SSA2,11,11 (1) The assembly chief clerk shall send a copy of this act to the attorney general of each state and to the attorney general of the United States.

SB320-SSA2,11,12 (End)